Your average American loves the thought of a trial by jury. The institution of the jury, as it was originally meant, keeps the government from becoming too strong. It protects the common man from overzealous prosecutors and other Criminal Justice officials but more importantly, having a group of people—your peers—decide your fate is a much easier pill to swallow than having some haughty judge do it. Yet whenever one of your average American gets a summons to report to jury duty, all you get is a hearty sigh. Though everyone loves the idea of a jury judging them, they certainly don’t want to have to sit on a jury themselves. Almost any activity is preferable to jury duty, including work. Many people who take off from work as often as possible would rather be there than serving their fellow man on a jury, and the easiest way to get yourself excused from a jury is to somehow intimate to the Prosecutor that you know something about jury nullification.

Jury Nullification is something that every American should know about, because even if it is not used in the pursuit of justice, it can at least be used to get countless Americans out of jury duty. The theory behind nullification is that when jurors, in possession of all the facts heard during a trial, decide that either a law is unfair, or that it is being applied unfairly in that instance, they have the right, or perhaps even the moral obligation, to vote their conscience. The accused person, facing down the government, has the right to a jury trial, and that jury is supposed to judge the law as well as the evidence, to vote on the verdict as according to their rectitude. The proverbial "Founding Fathers", who had chafed under the arbitrary rule of King George III of England, knew that the jury could be misused by whomever was in power (FIJA). A jury judging only the facts and their relation to the law could be forced to convict by the letter of that law and the opinion of the court. But what if the law is "bad"? Then enters Jury Nullification. If the law is thought to be unfair, biased or just simply "bad", then members of a jury will nullify it. Thus the jury serves as virtually the last check a law goes through before it is actually enforced. In this way, the jury is on par with the other segments of government in that it has the power to, in effect, veto a law (Emal). If many juries do this, then the law will be generally regarded as a "bad" one, and it will never be enforced. This keeps the government in its proper place, serving the people, not oppressing them. There would be something inherently evil about a government with the power to pass any law it wants, and apply it without any consideration for the people it governs. Fortunately, our constitution gives us the power of Jury Nullification to ensure that this country remains a democracy.

Yet, seldom is it that juries are informed of this right of conscience. Instead, judges generally read off a list of dry instructions to jurors, never once mentioning Jury Nullification. In these types of trials, where there is a jury, the judge’s job is just to sit at the bench and make sure that both sides of the adversarial process play fair. After the trial is over, he reads off his instructions to the jury, generally detailing their job as jurors and their responsibility to judge according to the evidence and the law and never mention nullification. Why? Because legal tradition assumes that everyone already knows about Jury Nullification (BTP-NG). Obviously this is not the case, because if the twelve people sitting on the jury had known about nullification, they would have mentioned that knowledge during Voir Dire to get excused from the jury.

The idea of Jury Nullification has been around since before the signing of the Magna Carta in England. Its foundation is very simple: when the King passed a bad law, a jury would simply not convict the accused party (FIJA). Therefore, Prosecutors will stop bringing people up on that charge, and the police will stop arresting people on it. Nullification lead to the establishment of Freedom of religion, speech and assembling the 1670 trial of Londoner William Penn. Later, in 1693, after the fervor of the witch-hunts had died down, 50 acquittals in a row led to the dismantling of the witch courts in Salem.

Nullification also led to the establishment of Freedom of the Press in 1735, when a jury refused to convict John Peter Zenger of "Seditious libel" for printing true accounts of a governors corruption. At this time, seditious libel was applied to anyone who harmed the reputation of a government official—whether that person was speaking the truth or not (FIJA). The jury in the Zenger trial realized that Zenger was being brought up under a "bad" law and so they nullified it.

The tradition of nullification continued when American’s found themselves being oppressed by the arbitrary tax and import laws of the insane King George III of England. This time, when a man was brought up before the court on charges of smuggling, the jury would vote not to convict him because he was being oppressed by an unfair or bad law. This time however, George III suspended the jury system and extended the boundaries of jury-less admiralty courts to include the American colonies. The result of this decision? The American Revolution (FIJA).

After the Revolution was won, the tradition of nullification continued, for, as John Adams said, "It is not only his right, but his duty . . . to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court" (FIJA). Thus, in America, up until the late 1800’s, juries were routinely informed of their right to judge the law as well as the defendant and to disregard the courts view of that law. In 1828, Noah Webster published his dictionary, defining a jury as " . . . consisting usually of twelve men, attend[ing] court to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions." Webster intended his dictionary to "preserve the meaning of the language used in the Constitution" (Lone).

In the 1850’s, northern juries were regularly refusing to convict abolitionists of violating the Fugitive Slave Law of 1850. After this, though, when nullification caused disgruntled workers to have freedom to strike, nullification started to seem like a bad idea to big business owners, and large corporations began to put pressure on the Supreme Court to do something about this nullification right. The result was that in 1895, the Supreme Court, in a split vote, decided that there was nothing in the Constitution requiring juries to be told about their power to judge the law as well as the facts (FIJA). Juries have the power, but do not have to be told of it (Lone). Today, no officer of the court is allowed to tell the jury of their veto power (Emal).

Still, American juries continue to nullify bad laws, even though they are not instructed to do so. During Prohibition, during the 1930’s, convictions were rare and so jury nullification in liquor trials lead to the eventual end of alcohol prohibition (Lone). Today, it is difficult to convict someone of marijuana possession in Kentucky, because juries simply refuse to find the accused guilty (Emal).

Since Jury Nullification is nowhere to be found in our national Constitution, a few states have worded it into their State Constitutions. Most notably, Maryland and Indiana require that a jury be fully informed of it’s right to nullify. Maryland says that a jury is a body that must be "judges of law, as well as of fact." And Indiana states that "the jury shall have the right to determine the law and the facts" (Kopel). Still, most of the states never mention this right, and so many people are unaware of it. Those who are aware of it are working to getting a "Fully Informed Jury Amendment" written into their own state constitutions in the hopes of having future jurors completely aware of their right to nullify a law that is unfair or oppressive, because though many people are aware of this right, too many are not (Kopel). In 1966, researchers found juries were only exercised their right to nullify 8.8 percent of the time between 1954 and 1958, because that right was not only being concealed from them, but because the courts were actually steering them away from any course that swerved even a little to the nullification side. In most states, juries are told to judge on the basis of the evidence only, and not to consider the validity of the law (Emal).

This has lead to juries convicting strictly on the basis of the law, and not taking into account the context. In Phoenix, Arizona, a group of United States marshals attacked an elderly couple and their middle aged children, mistakenly believing that they were harboring a man whom they wished to arrest. The 72-year-old mother was knocked to the ground and was sent to the hospital, where she nearly died. The victims of this attack were placed on trial for resisting arrest and refusing to "to submit peaceably" to an unprovoked beating. The jury found that the marshals had initiated the illegal attack, yet still felt bound by the judges’ instructions to judge by letter of the law, and so convicted the victims (Kopel).

During the 1960’s and 1970’s, there were many Americans who felt that this country should not have interfered in Vietnam. Although some of these people were out protesting in the streets, there were many that found themselves waging this battle in the courtrooms. Typically, juries felt that they had to convict protest defendants because they were unaware of the right they had to nullify the law. To quote, "I had great difficulty sleeping that night . . . I detest the Vietnam War . . . But it was so clearly put by the judge." Or "I’m convinced that the Vietnam War is no good, but we’ve got a Constitution to uphold . . . technically speaking, they were guilty according to the judge’s charge." In the few trials where juries were aware of their power to nullify, they voted to acquit defendants accused of the same types of crimes (FIJA).

Yet, of juries that are aware of their power to nullify, some have wielded the power irresponsibly and maliciously. During the 1950’s and 1960’s, and most likely before that, southern, all-white juries often refused to find even the most obviously and outrageously culpable guilty of perpetrating racist violence. These juries were using their power to nullify by refusing to convict. But the blame for these mock trials does not fall only on jury nullification, but also on the fact that these juries were not in the least representative, because both blacks and women were generally excluded from jury duty. Thanks to the Supreme Court, however, this kind of exclusion is now nearly impossible, and this kind of blatant racism could hardly go unchallenged (Kopel). Even still, the all-white jury that acquitted the officers’ accused of beating Rodney King was most likely engaged in jury nullification (Barlow 446-7).

Even with these instance taken into account, and one can be sure that there are plenty more examples abuses of jury nullification power, most citizens are capable of weighing the evidence and the law and deciding whether or not the defendant should receive a conviction. There is little reason to believe that they will not convict someone who obviously deserves to go to prison, or worse. There will always be people who will abuse the powers given them, but there are many more that will wield it correctly and responsibly. In Indiana and Maryland, there is no more evidence of "lawlessness" than anywhere else in the United States—yet those two states have jury nullification worded into their constitutions (Kopel). One must remember that juries cannot create new laws or convict under those that do not exist, nor can it abolish a law. A jury makes its decisions only one a case by case basis. Neither can a jury declare a law unconstitutional, because only the Supreme Court has that power.

Keeping juries unaware of their power to nullify unfair and oppressive laws erases that last test that laws must go through before being enforced. The jury is the final ground that allows us to see whether or not a law is a "Good" one or a "Bad" one, and whether or not it should be enforced. Jury Nullification informs the government of evolving standards in popular culture, which leads to novel ways of view the law. The government passes laws, but that same government without the consent of the people should not enforce them. When jury nullification is concealed from "the people" who sit on juries, we no longer have "trial by jury", but "trial by government," and we no longer have a check against an oppressive government.